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Albert Stella, As Next of Kin and In His Capacity As Executor of the v. Laurie Spaulding

February 1, 2013

ALBERT STELLA, AS NEXT OF KIN AND IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF DEBORAH A. STELLA
v.
LAURIE SPAULDING, M.D. AND FLETCHER ALLEN HEALTH CARE, INC.



On Appeal from Superior Court, Rutland Unit, Civil Division September Term, 2012 Mary Miles Teachout, J.

The opinion of the court was delivered by: Skoglund, J.

Stella v. Spaulding and Fletcher Allen Health Care

(2011-327)

2013 VT 8

Supreme Court

PRESENT: Dooley, Skoglund, Burgess and Robinson, JJ., and Bent, Supr. J.,

Specially Assigned

¶ 1. In this medical malpractice action, plaintiff appeals the court's entry of judgment in defendants' favor following the court's discovery sanction, which precluded plaintiff from offering expert testimony or evidence regarding defendants' negligence due to plaintiff's repeated failure to adequately reply to interrogatories. On appeal, plaintiff argues that the discovery response was sufficient and the court abused its discretion in concluding that more detailed factual information was required. We affirm.

¶ 2. The record reveals the following. Dr. Spaulding performed weight-loss surgery on patient Deborah A. Stella on May 2, 2007 at Fletcher Allen Health Care (FAHC). Patient was subsequently discharged from FAHC and sent to a nursing home to rehabilitate. Dr. Spaulding provided patient with post-operative care, including examining patient's incision, which showed signs of infection. In June 2007, the nursing home confirmed that patient had contracted a bacterial infection at the incision site. Patient was then treated by various medical professionals at different facilities. Patient died in November 2007 from the infection. In November 2009, plaintiff, as the representative of the deceased patient, filed suit against defendants Dr. Spaulding and FAHC, alleging that Dr. Spaulding had deviated from the acceptable standard of medical care and negligently failed to treat the infection that eventually caused patient's death. The complaint alleged that patient's primary care physician, Dr. Stickney, recommended a course of antibiotics, but Dr. Spaulding instructed that physician not to prescribe any antibiotics.

¶ 3. In January 2010, defendants sent plaintiff a set of interrogatories and requests to produce. Two interrogatories are relevant to this appeal. Interrogatory 64 requested the "identity of experts to be employed at trial of this matter, the subject of their testimony, their opinions and the substance of the facts, which are grounds therefore." Interrogatory 71 asked plaintiff to state the alleged negligent acts or omissions committed by Dr. Spaulding specified by date and time, how the act impacted patient, and what the proper course of care should have been. In March 2010, the court issued a discovery order. In June 2010, pursuant to the discovery order, plaintiff disclosed that Dr. Stickney would testify concerning defendants' failure to treat patient's infection "and that the failure was a breach of the standard of care and resulted in the death of [patient]."

¶ 4. Meanwhile, on April 20, 2010, defendants filed a motion to compel plaintiff to respond to the interrogatories. On April 22, 2010, plaintiff responded to other interrogatories, but did not identify an expert or respond to Interrogatory 71. On April 30, 2010, defendants sent a letter to plaintiff highlighting inadequacies and insufficiencies in plaintiff's response to the interrogatories.

¶ 5. Faced with a lack of response, defendants filed another motion to compel, and the court held a hearing on June 16, 2010. At the hearing, the parties discussed several aspects of plaintiff's discovery response and agreed that plaintiff would sign releases so that defendants could obtain patient's medical records. The sufficiency of plaintiff's expert disclosure apparently was not discussed at the hearing. Later in June, defendants attempted to obtain a more detailed disclosure regarding plaintiff's expert by sending a letter, which requested the dates of defendants' alleged negligent acts, the specifics of these acts and more information about how those acts led to patient's death. The letter explained that defendants required this information to assess whether to take Dr. Stickney's deposition. Plaintiff responded by letter, reiterating that it intended to present testimony from Dr. Stickney regarding Dr. Spaulding's negligence in failing to treat patient's infection but adding none of the specifics requested.

¶ 6. Defendants then filed another motion to compel on July 22, 2010. This motion set forth a detailed chronology of patient's care. This history is briefly repeated here because it is relevant to the question of whether plaintiff's answer was complete. Following patient's surgery on May 2, 2007, she was discharged from FAHC to a local rehabilitation facility. On examination by Dr. Spaulding on May 22, 2007, some wound drainage was noted and a minor wound infection diagnosed. A loose wound packing was prescribed, but no antibiotics. Patient was transferred to a nursing home in Rutland and, on June 1, 2007, Dr. Spaulding's office was advised that further indications of wound infection existed and that patient's primary care doctor (presumably Dr. Stickney) had ordered a culture. Three days later, Dr. Spaulding was advised by the nursing home that the culture showed a MRSA infection and that a pharmacy had recommended antibiotic treatment with doxycycline. Dr. Spaulding approved the proposed plan to start patient on a course of that antibiotic. Dr. Stickney's medical records indicate he ordered the antibiotic that day.

¶ 7. Patient was discharged on June 4, 2007, and returned home. She saw Dr. Stickney on June 26 and at time her wound appeared sufficiently healed so that the packing could cease. Dr. Spaulding saw patient on July 30 and noted the wound was draining again so she ordered a wound exploration and evacuation for August 13, 2007. On August 8, however, patient suffered a pulmonary embolism and was hospitalized in Rutland. Dr. Spaulding did not treat patient after that time. Patient's wound infection was noted at the Rutland hospital. Neither her primary care doctor nor the surgeon there prescribed or recommended antibiotics at the hospital or after discharge. Patient was readmitted on two more occasions to the Rutland hospital in September 2007 for matters related to the wound infection. Again, she was not prescribed antibiotics. It was discovered she had developed a MRSA infection of her heart valves. She was transferred to FAHC, but physicians were unable to resolve the infection and she died of sepsis on November 29, 2007.

¶ 8. Defendant's motion alleged that plaintiff had failed to adequately respond to Interrogatory 71 regarding what specifically was allegedly done wrong by Dr. Spaulding or FAHC, what should have been done, and how the negligent acts altered patient's outcome. Defendants also claimed that plaintiff had not complied with Vermont Rule of Civil Procedure 26 regarding expert disclosures because there was insufficient information about Dr. Stickney's opinion. Defendants set forth the following list of questions that remained unanswered: What does Dr. Stickney claim that Dr. Spaulding should have done, and when? What information does he claim she had about his patient's [infection]? Why was Dr. Spaulding's refusal (if in fact there was a refusal) to treat [patient] binding on Dr. Stickney and the other Rutland physicians, including the surgeon who operated on [patient] . . . ? What would the allegedly omitted action have done to avert [patient's] sepsis? What specific other persons at FAHC does Dr. Stickney claim were in violation of the standard of care? What specifically did they do wrong? What should those persons have done?

¶ 9. Plaintiff did not respond. The court granted the motion on September 8, ordering plaintiff to respond within ten days. Plaintiff then filed a motion for clarification, asserting that an expert disclosure had been supplied and that nothing further was required. The court's Entry Order regarding the motion explained that the provision of Dr. Stickney's file was not sufficient satisfaction of the defendant's discovery request for the substance of the witness's expert opinion. It also extended the compliance date.

¶ 10. On October 1, plaintiff filed a supplemental disclosure, which stated that Dr. Stickney's opinion was that defendants' refusal to treat patient's infection caused her to develop sepsis which led to her death. And, that failure to aggressively treat or to allow Dr. Stickney to treat the infection with antibiotics was a breach of the standard of care. Defendants filed a motion to dismiss or for sanctions for plaintiff's continued refusal to comply with the court's discovery orders. The court issued an order on March 29, 2011, explaining: The court accepts that Plaintiff's counsel disclosed the name of Dr. Stickney as an expert witness on medical negligence on June 1, 2010. However, over 9 months have passed since then, and 13 months have passed since answers to Defendant's First Set of Interrogatories and Requests to Produce were due, and Plaintiff has not provided the specifics requested in Interrogatories 64 and 71, and has not complied with the two Orders to Compel issued September 8, 2010 and September 21, 2010.

Specifically, Plaintiff has not provided the specifics of Plaintiff's expert's opinions as to specific acts of negligence and the standard of care and failure to meet the standard of care requested in those two interrogatories. There are no particular dates or acts or incidents of conduct identified in response to Interrogatory 71, and the substance of the disclosed expert's opinion is described in such general terms that it cannot be connected to any specific acts or incidents.

Defendants, having sought reasonable discovery, are not obliged to incur the costs of a deposition in order to obtain the information requested.

ΒΆ 11. The court sanctioned plaintiff for his noncompliance by precluding plaintiff from using any evidence at trial that was requested in Interrogatories 64 and 71. Unable to submit expert evidence or evidence of defendants' negligence, plaintiff conceded that it could not oppose a motion for summary ...


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